BloggerCon and permission culture

Looking forward to attending BloggerCon III, the big blog conference of the year, on Saturday at Stanford.

Denise Howell and I have been discussing whether it would be legal for me to bring my video camera to BloggerCon so that I could tape some of the panel sessions and perhaps post some of the more interesting excerpts on the Web. Denise tells me that under normal circumstances I would need to obtain written consent from the conference speakers, and perhaps from the conference organizers as well, to do this.

Here are Denise's thoughts, sent by email (she'll also be blogging some additional observations on her blog):

A copyright owner has the exclusive right to "perform" or "display," or to authorize the performance or display, of the work to the "public." He or she also has the exclusive right to create or authorize the creation of a derivative work, such as a recording of a talk based on an underlying copyrighted work. So if someone at BloggerCon is giving a talk based on notes they've made in preparation, they have an argument the notes are copyrighted (they're "original works of authorship fixed in any tangible medium of expression"), and the talk is their "performance." It may well be that any recording you make at BloggerCon is not the derivative of a copyrighted work (and thus is something to which you hold the copyright as the maker of the recording), but you can see how this would be difficult to determine in advance and/or without guessing.

This issue should probably be dealt with at conferences that want to head things off at the pass by having the participants confirm up front either that no copyright applies to the sessions, or that one of the CC licenses does. Maybe Winer (and Larry Lessig, since he'll be there) will want to make BloggerCon the first conference to do this. It's worth suggesting.

That's not the only potential problem, however. Just to make matters murkier, in California we also have a "right of publicity" statute that provides a cause of action for unauthorized use of one's "name and likeness" "for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services." See: http://tinyurl.com/5nthx . It's tough to see how you'd be "selling" or "soliciting purchases" of anything by uploading to ourmedia, but you'll have to decide whether you're ok with running the risk you might have to demonstrate that in the context of a lawsuit. Again, this is something the conference planners could easily address up front if they're made aware of the issue.

But then we noticed that BloggerCon's ground rules already allow for recording or webcasting of all sessions, as long as it's noncommercial. (I wasn't able to attend the first two BloggerCons at Harvard, so wasn't aware of this policy.) Bravo, Dave & company! Perhaps other conferences will follow suit, using this as a model policy.

Later: Denise has some additional thoughts.